DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 31 October 2024, 04 December 2024 and 12 March 2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Double Patenting
The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
Claims 1, 11 and 12 of U.S. Patent Application No. 18/932,718 (‘718 application) are non-provisionally rejected on the grounds of non-statutory obviousness-type double patenting as being unpatentable over claims 1, 1 and 11, respectively, of U.S. Patent No. 12,190,527 (‘527 patent). A comparison of the conflicting claims is shown in the table below.
U.S. Patent No. 12,190,527
Reference Claim
U.S. Patent Application No. 18/932,718 Conflicting Claim
Claim 1. An image processing device that acquires an image and detects a subject, the image processing device comprising:
at least one processor and a memory holding a program that causes the processor function as:
a detection unit configured to detect a plurality of parts related to a same subject within the image;
a determination unit configured to determine a priority part from the plurality of parts detected by the detection unit; and
an extension unit configured to extend a region of the subject
corresponding to a first part from the first part determined as
the priority part in a direction of a second part that is different from the first part among the plurality of parts.
Claim 1. An image processing device that acquires an image and detects a subject, the image processing device comprising:
at least one processor and a memory holding a program causes the processor to function as:
a detection unit configured to detect a plurality of parts related to a subject within the image;
a determination unit configured to determine a priority part from the plurality of parts detected by the detection unit; and
an extension unit configured to extend a region of the subject
from
the priority part in a direction of
the part detected by the detection unit.
Claim 1. An image processing device that acquires an image and detects a subject,
the image processing device comprising:
at least one processor and a memory holding a program that causes the processor function as:
a detection unit configured to detect
a plurality of parts
related to
a same subject within the image;
a determination unit configured to determine a priority part from the plurality of parts
detected by the detection unit;
and
an extension unit configured to extend
a region of the subject
corresponding to a first part
from the first part determined as
the priority part in a direction of a
second part.
Claim 11. An imaging device that
detects a subject from an image acquired by an imaging unit,
the imaging device comprising:
at least one processor and a memory holding a program that causes the processor function as:
a detection unit configured to detect first and second parts
related to
a subject within the image;
a determination unit configured to determine the first part as a priority part;
and
an extension unit configured to extend a region of the subject
from
the priority part in a direction of the second part.
Claim 11. A control method executed by an image processing device that acquires
an image and detects a subject, the method comprising:
detecting a plurality of parts related to a same subject within the image;
determining a priority part from the plurality of parts
detected in the detecting; and
extending a region of the subject corresponding to a first part
from the first part determined as
the priority part
in a direction of a second part
that is different from the first part among the plurality of parts.
Claim 12. A control method executed by an image processing device that acquires an image and detects a subject, the method comprising:
detecting a plurality of parts related to the subject within the image;
determining a priority part from the detected plurality of parts;
and
extending a region of the subject
from
the priority part
in a direction of the detected part.
Though the conflicting claims are not entirely identical, it is obvious from the side-by-side comparisons of the claim language in the table above that the terms in bold print portions are entirely identical in each claim; and the italicized-underlined bold print portions of the claims are obvious variations of one another. With that in mind and in view of the discussion below, it is respectfully submitted that the claims are not patentably distinct.
It is settled that the disclosure of the patent may not be used as prior art. General Foods Corp. v. Studiengesellschaft Kohle mbH, 972 F.2d 1272, 1279, 23 USPQ2d 1839, 1846 (Fed. Cir. 1992). However, this does not mean that one is precluded from all use of the patent disclosure (emphasis added). Those portions of the specification which provide support for the patent claims may also be examined and considered when addressing the issue of whether a claim in the application defines an obvious variation of an invention claimed in the patent. In re Vogel, 422 F.2d 438, 441-42, 164 USPQ 619, 622 (CCPA 1970). The court in Vogel recognized: “that it is most difficult, if not meaningless, to try to say what is or is not an obvious variation of a claim.
Thus, in view of the table shown above and the findings of In re Vogel discussed above in mind, it is respectfully submitted that disclosures of '527 patent that provide support for the patent claims also provide support for the minor differences in the limitations of the claims of the ‘718 application. As a result, the present obviousness type double patenting rejection has been made.
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Allowable Subject Matter
Claims 2-10 and 13 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MYRON K WYCHE whose telephone number is (571)272-3390. The examiner can normally be reached 7:30 am - 3:30 pm.
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/Myron Wyche/ 10 July 2026
Primary Examiner AU2644
Prosecution Insights